By Jonathan Stempel
NEW YORK (Reuters) – New York state’s highest court will consider whether U.S. President Donald Trump must face a defamation lawsuit by a former contestant on “The Apprentice,” in a showdown that could help determine whether Trump can be sued while in the White House.
The Appellate Division in Manhattan, an intermediate-level court, on Tuesday granted Trump permission to ask the state Court of Appeals to review whether its 3-2 decision last March allowing Summer Zervos to sue him was correct.
In that decision, the majority said the U.S. Constitution did not strip state courts of power to decide cases arising under state constitutions, even if they involved sitting presidents, and that Trump was “not above the law.”
The dissenting judges said the case would interfere with Trump’s presidency and could wait until he left office.
A spokeswoman for Trump’s law firm Kasowitz Benson Torres said: “We believe that the Court of Appeals will agree that the U.S. Constitution bars state court actions while the President is in office.”
A lawyer for Zervos, Beth Wilkinson, said: “We remain confident that we will prove her defamation claim in court and that Mr. Trump will face responsibility for his actions.”
Trump has argued in a variety of litigation that he is immune from lawsuits and investigations, including criminal proceedings, while in office.
The U.S. Supreme Court is expected to decide, likely by the end of June, whether Trump can block subpoenas by Congress and New York state prosecutors for his financial records.
Zervos, a 2005 contestant on Trump’s reality television show “The Apprentice,” accused the president in a 2017 lawsuit of defamation for calling her a liar after she accused him of sexual misconduct.
She has said Trump kissed her against her will at a 2007 meeting in New York and later groped her at a Beverly Hills, California, hotel.
Trump has denied the claims of Zervos and several other women who accused him of sexual misconduct.
Zervos’ effort to question Trump under oath will remain on hold during the appeals process.
In its decision, the Appellate Division majority found Zervos’ case “materially indistinguishable” from former Arkansas state employee Paula Jones’ lawsuit accusing then-President Bill Clinton of sexual harassment.
The Supreme Court let that case go forward in 1997, helping pave the way for Clinton’s impeachment the following year.
Trump is expected to soon face trial in the Republican-led U.S. Senate, after the Democratic-led House of Representatives impeached him on charges of abuse of power and obstruction of Congress.
(Reporting by Jonathan Stempel; Editing by Leslie Adler and Jonathan Oatis)